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THE FOURTEENTH AMENDMENT: THE GREAT
EQUALIZER OF THE AMERICAN PEOPLE
Abel A. Bartley*
The Fourteenth Amendment to the United States Constitution,
which was ratified on July 28, 1868, demonstrated the change in
attitude, which hit many Americans after the chaotic Civil War. It was
America’s first attempt to legally challenge White supremacist ideas by
creating a truly equal multiracial society. With its emphasis on equal
protection and equal justice, the Fourteenth Amendment was intended to
be the great equalizer of American people, legally changing African
American men into White men so that they could enjoy all the rights,
privileges, and immunities of United States citizenship. However,
determining the meaning of equality uncovered the racism which
characterized Americans. Even though the Fourteenth Amendment
changed the law, it could not change White Americans who refused to
accept African American equality. The dichotomy in American racial
ideas was summed up by two Democratic slogans. First, “The Union as
It Is, the Constitution as It Was” represented many American’s desire to
return to a prewar constitutional status quo with Whites in a favored
position.1 The other slogan captured in the 1866 Cincinnati Enquirer,
“Slavery is dead, . . . the negro is not, there is the misfortune”
underscored the real problem.2 Abolishing slavery did not solve
America’s race problem. The Civil War changed American racial laws,
but it did not change American racial attitudes.3 It was not until the
*
Dr. Abel A. Bartley is an Associate Professor of African American and Urban History and
Directors of both the Pan African Studies Program and the Pan African Center for Community
Studies at The University of Akron. He is a graduate of Florida State University where he received
his BA History (87) and Political Science, MA in US History (90) and Ph.D. African American and
Urban History (94). He is the author of one book Keeping the Faith: Race Politics and Social
Development Jacksonville, Florida 1940-1970 and nine articles.
1. ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863-1877 31
(Perennial Library 1988).
2. Id.
3. See CARTER G. WOODSON & CHARLES H. WESLEY, THE NEGRO IN OUR HISTORY 378-79
473
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Warren Court’s decision in Brown v. Board of Education that the courts
finally instituted Fourteenth Amendment principles and attempted to
legally create racial equality, as well as color blindness when dispensing
justice and carrying out social policy.4
The Civil War profoundly changed the role and power of the
United States government. During the war years of 1861-1865, the role
of the federal government expanded as the Lincoln administration
attempted to deal with the dual issues of maintaining the Union and
eradicating slavery. Attitudes about the Constitution changed from the
traditional limited interpretation to a broader interpretation. Lincoln’s
expansion of federal authority pushed ordinary citizens to accept the
change in federal power.5 The clearest example of the acceptance of this
increased federal clout can be seen in the ratification of the Thirteenth,
Fourteenth, and Fifteenth Amendments, which dramatically changed
racial realities in the United States by making the federal government the
defender of civil liberties.6 The most far-reaching of these amendments
was the Fourteenth. Even though both Ohio and New Jersey tried to
rescind their ratifications, 27 of the 37 states ratified the Amendment.7
The Fourteenth Amendment received solid support from Republican
leaders in the House, where the measure passed 127 to 88.8 There is no
record of the Senate vote.9
On Sunday, April 9, 1865 General Robert E. Lee surrendered his
Confederate forces at the Appomattox Courthouse in Richmond,
Virginia, essentially ending the nation’s bloodiest and most destructive
war.10 Between April 12, 1861 and April 9, 1865, more than one million
Americans perished in a war to determine the nature and makeup of
America’s democracy. The war, which destroyed America’s physical
landscape, was equally devastating to the country’s social and racial
landscape. After four years of bloody conflict the defeated South was
forced to accept the overthrow of the Confederacy, the end to chattel
slavery, and the equal status of African Americans. Historian John Hope
Franklin says, “[f]or Blacks, Lee’s surrender was a victory. At last they
had achieved what human beings everywhere have always wanted—
(The Associated Press, Inc. 1962) (1922).
4. Brown v. Bd. of Educ., 349 U.S. 294 (1955).
5. J. G. RANDALL & DAVID DONALD, THE CIVIL WAR AND RECONSTRUCTION 537 (D.C.
Heath & Co. 1961 2d ed.).
6. See generally, id. at 634-35.
7. See generally, id. at 635.
8. Id.
9. Id.
10. JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 848-49 (1988).
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freedom.”11 Northern victory turned the White South on its head. As
one African American soldier said as he saw his former owner within a
group of Confederate prisoners he was guarding, “Hello, Massa; bottom
rail on top dis time.”12
The Civil War forced American leaders to stand up and recognize
their responsibility to the nearly four million African Americans who
had been locked in a cruel system of chattel slavery and to define the
position of the more than one million African Americans bewildered by
their nondescript free—Black status. The Reconstruction period, which
occurred in stages, signified America’s best effort to solve its race
problem and forever define the rights and privileges of American
citizenship. It is clear that had there been no Civil War, the nation
would never have had the political resolve to redefine the meaning of
citizenship and include African Americans in this democracy.
The task of reestablishing a social order radically changed by
emancipation and the overthrow of the slave-owning oligarchy proved
difficult. America’s leaders needed to determine the nature and
composition of the recreated democracy, and to include those who had
originally been left out. The most important issue facing America’s
leaders was determining the place of African Americans. The
Reconstruction leaders had at least three choices about what they could
do with African Americans after the war.
The first and most obvious choice was to return the newly freed
slaves to slavery.
Many argued that Lincoln’s Emancipation
Proclamation had been an illegal act perpetrated during a wartime crisis.
Some legal scholars argued that the United States Constitution gave no
legal sanction to the method by which Lincoln freed the slaves. Once
the war ended, Republican leaders could have reconstructed the
agricultural South and set up a slightly modified system of slavery while
they debated the legality of emancipation.13
The second alternative was to create a permanent or temporary
second-class status, reserved for African Americans. There were few
White Americans whose thinking had evolved enough to accept African
American equality. Therefore, they could have accepted some type of
semi-permanent or temporary second-class status for African Americans.
This subordinate status could have been used as a training period to
prepare African Americans for citizenship, or to continue the debate
11. JOHN H. FRANKLIN & ALFRED A. MOSS, JR., FROM SLAVERY TO FREEDOM: A HISTORY
(8th ed. 2000).
12. MCPHERSON, supra note 10, at 862.
13. See generally, FONER, supra note 1, at 198-99.
OF AFRICAN AMERICANS 244
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over colonization. President Andrew Johnson expressed this view when
he vetoed the 1866 Civil Rights Act. This second-class status would
have mirrored the experience of most African Americans who lived in
Northern states. Even though some Northern states offered citizenship
to African Americans, only Massachusetts granted full civil rights.14
The last option was to create an interracial democracy based on
freedom and equality. This option required a transformation in the
thinking of ordinary Americans. The problem with creating an
interracial democracy was: how do you create equality in a nation ruled
by privileged White men? Creating equality required either a leveling
up of African American rights, or a leveling down of White men’s
rights. Reconstruction leaders had to determine whether they wanted to
reduce the status of White men, or increase the status of African
Americans.15
Many people recognized the historic opportunity presented by
Northern military victory to restructure our democracy and continue the
work started by our founding fathers. Frederick Douglass wrote that
[T]he question before the nation was: “Whether the tremendous war so
heroically fought and so victoriously ended shall pass into history a
miserable failure, barren of permanent results, . . . a strife for empire,
as Earl Russell characterized it, of no value to liberty or
civilization, . . . or whether . . . we shall . . . have a solid nation,
entirely delivered from all contradictions and social antagonisms,
based upon loyalty, liberty, and equality.16
The question was whether we use Northern victory to correct the
ambiguities in American democracy, or return to a prewar status quo
leaving the Constitution as it was?
Douglass, who had experienced the demonical nature of slavery and
White supremacy, understood that unless the federal government
asserted its authority over the states there was no way to counter the
prevailing power of the slavocracy. The events of 1864-1865 convinced
him that the South’s hostility towards African Americans had not
subsided. He argued that without a guaranteed vote, African American
freedom would be meaningless. According to Douglass, “unless the
Federal government be armed with despotic power, to blot out state
authority” the only other option was “to give to every loyal citizen the
14. JOHN H. FRANKLIN & ALFRED A. MOSS, JR., FROM SLAVERY TO FREEDOM: A HISTORY
(8th ed. 2000).
15. See RANDALL & DONALD, supra note 5, at 579; FONER, supra note 1, at 66-67.
16. WILLIAM S. MCFEELY, FREDERICK DOUGLASS 255 (1991).
OF AFRICAN AMERICANS 252
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elective franchise,—a right and power which will be ever present, and
will form a wall of fire for his protection.”17 Douglass was calling for
something the Unites States had never attempted before; an interracial
democracy based upon racial equality and natural rights. Anything less
would be an unfinished revolution.
Even during the war, Douglass understood that we could not just
reestablish the old Union. We had to create something fundamentally
different and new to reward those who bravely fought to protect the
Union. As he noted,
Men talk about saving the Union, and restoring the Union as it was . . .
what business . . . have we to fight for the old Union. We are fighting
for something incomparably better . . . We are fighting for unity, . . . in
which there shall be no North, no South, no East, no West, no black,
no white, but a solidarity of the nation, making every slave free, and
every free man a voter.18
The abolition of slavery had to be followed by the abolition of color
distinctions. As Henry Highland Garnet wrote, “Emancipation is one
fact . . . old attitudes survive the proclamation of liberty . . . Does
America want to hold the Black suspended between slavery and
freedom, in a sphere where he possesses neither the right to live
according to his wishes, nor the power to act by himself?”19 That was
the essence of what reconstruction leaders wanted. They were not
interested in simply reestablishing the old order; they wanted to create
something radically different where African Americans would be equal
to White men.20
W.E.B. Dubois noted that the four million people freed from
slavery were free persons, but they were not political persons.21 Even
after the 1865 ratification of the Thirteenth Amendment, African
Americans still had no recognized political status. Freedom had
accentuated only natural rights, not political rights. Life, liberty, and the
pursuit of happiness meant little without the vote.
Despite
emancipation, the United States Constitution continued to see African
17. Id.
18. PHILIP S. FONER ED., THE LIFE AND WRITINGS OF FREDRICK DOUGLASS VOL. 3 THE
CIVIL WAR NEW YORK, INTERNATIONAL PUBLISHERS, 42 (1952).
19. JAMES M. MCPHERSON, THE NEGRO’S CIVIL WAR: HOW AMERICAN NEGROES FELT AND
ACTED DURING THE WAR FOR THE UNION 295 (1965).
20. Id.
21. W.E. DUBOIS, BLACKS RECONSTRUCTION IN AMERICA: AN ESSAY TOWARD A HISTORY
OF THE PART WHICH BLACK FOLK PLAYED IN THE ATTEMPT TO RECONSTRUCT DEMOCRACY IN
AMERICA, 1860-1880 289 (1935).
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Americans as only three-fifths of a person. The political power of these
three-fifths of persons was still in the hands of the former slaveholders.
If that situation remained, Northern victory would have actually
increased the South’s power at the expense of the North. Granting
citizenship rights to African Americans would make them five-fifths of a
person and reduce the power of the slaveholding oligarchy which
dominated the South. It would take the three-fifths power, formerly
controlled by slave owners, and give it to the freedmen. Under the old
system, the South received representation for slaves who were
themselves given no representation. Granting African Americans
citizenship made them five-fifths of a person, and reduced the power of
the White South while giving power to African Americans.22
President Andrew Johnson saw the tenor of the radical Republican
controlled Congress and advocated a return to a slightly modified status
quo. He was frightened by their talk about racial equality and the radical
notions of granting political and civil rights to African Americans.
Johnson, a Southerner, saw no need to change the old Union, or to make
drastic changes to the state-federal relationship.23
As a White
supremacist, he wanted to reassert White dominance by rejecting the
1866 Civil Rights Act, hampering attempts to ratify the Fourteenth
Amendment, and closing down the Freedmen’s Bureau. Collectively,
these three policies were the most pronounced examples of the
Republican desire to create a fundamentally new republic based upon
racial equality.24
The battle, which erupted between Johnson and the Republican
Congress, was a fight for the control of the direction of reconstruction
and the meaning of citizenship. Despite his antagonism with the
Southern aristocracy, Johnson had no desire to see them replaced with
African Americans. The Republican Congress wanted to make sure that
Northern victory would result in permanent measurable changes in the
South. As a result they could countenance no challenge from the White
House. The Radical Republicans silenced their opponent by pushing
forward an impeachment proposal. Congress’ victory represented a
victory of idealism over the old order. Johnson epitomized the old era,
one based upon racial castes with Whites at the top and African
Americans locked in “semi-personhood.” The Radical Republicans
embodied a new era, one based upon racial equality and African
22. Id. at 289-90.
23. RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION
AND BLACK AMERICA’S STRUGGLE FOR EQUALITY 46 (1975).
24. See generally, id.
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American citizenship where Republican ideas of free land and free
people dominated.25
By 1866, the Radical Republicans had wrestled the reins of
government from President Johnson.26 They used their control to follow
Douglass’ advice and create an interracial democracy dedicated to racial
equality and a broad definition of citizenship.27 Despite their moral and
human failures, these men represented the best of their generation. Their
efforts can be criticized, but they cannot be ignored. They attempted to
tread the ground that the founding fathers feared. They wanted to amend
the Constitution, to create a definition of citizenship large enough to
incorporate all African Americans, and to guarantee equal treatment for
all citizens.28 Concerning the Fourteenth Amendment, Richard Kluger
wrote, “without doubt its language asserted that the black man was not
only no longer a slave but could not be shunted into some indeterminate
limbo between slavery and full citizenship.”29
Between 1865 and 1870, the nation solidified its commitment to
racial equality by codifying its pronouncements in the Fourteenth
Amendment. As Richard Aynes wrote, “[i]n the political arena, the
architects of the national antislavery strategy considered Article IV,
section 2 as recognition of national citizenship.”30 Clearly, the original
intention of the Fourteenth Amendment was to define citizenship rights
and to ensure that all American citizens be equally afforded its benefits
and privileges. Even though there were others denied citizenship rights,
it is obvious that the Fourteenth Amendment was intended to protect
African Americans and give them American citizenship. Richard Kluger
wrote that it was designed to “give the freed black people of America the
same rights as everyone else.”31
Traditionally, the rights and privileges of American citizenship had
been reserved exclusively for White men. Women, Africans, and Native
Americans were never considered for full citizenship in the original
republic. During the Constitutional Convention, the founding fathers
made no provisions for African American citizenship. Each state set its
own rules to govern citizenship. However, their definition of citizenship
was limited and reserved to a few select White men. State citizenship
25. Id.
26. Id.
27. Id. at 47.
28. Id.
29. Id.
30. Richard L. Aynes, Unintended Consequences of the Fourteenth Amendment 112, in
DAVID E. KYVIG, UNINTENDED CONSEQUENCES OF CONSTITUTIONAL AMENDMENT (2000).
31. KLUGER, supra note 23, at 47.
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did not confer all citizenship rights. Despite their polemics on
egalitarianism, the founding fathers’ definition of equality never
extended far enough to include African Americans or women. The fiftyfive White men who met in Philadelphia, in May 1787, to write the
Constitution, never considered African American citizenship. The only
times African Americans were mentioned were in reference to their
propertied status.
The Reconstruction leaders were embarking on a new path.
Bringing African Americans up to legal equality with Whites required a
legal change in the status of African Americans. The Fourteenth
Amendment was an attempt to do just that, so that they could enjoy all
of the rights and privileges of American citizenship.32 The failure of the
law to accept African American and White equality was the failure of
the federal court. In the North, African Americans were citizens. In the
South, they were African Americans given rights intended to humiliate
the proud White man who had climbed so high on the Black man’s
back.”33
To understand why the Fourteenth Amendment did not solve the
race problem requires a basic understanding of Reconstruction. After
the Civil War, White Southerners immediately attempted to restore their
antebellum social order, passing a series of laws collectively referred to
as “Black codes.”34 Although these “Black codes” were based on
established Northern laws, they were in poor taste and were an insult to
Northern notions of victory.35
These so-called “Black codes” were designed to restore slavery
under a different guise and represented the South’s reluctance to accept
the free status of African Americans. They also demonstrated an
arrogance which insulted Northerners who had suffered devastating
losses during the war. The “Black codes” proved that changed
circumstances had not changed Southern attitudes about race and social
custom. They demonstrated the South’s refusal to accept defeat.
Southerners, like most Northerners, did not believe that African
Americans were equal to Whites. Southerners, however, went even
further and refused to accept them as human beings.36
The “Black codes” dealt with the very issues which helped shape
32. Id. at 46-47.
33. Id. at 59.
34. JOHN H. FRANKLIN, RECONSTRUCTION: AFTER THE CIVIL WAR 50-51 (David J. Boorstin
ed., The University of Chicago Press 1961).
35. Id.
36. Id. at 51.
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American ideas on race and prejudice. The Thirteenth Amendment was
designed to forever end the notion of people being property. For the first
time, the federal government set social policy and defined the nature of
America’s republic. However, the “Black codes” were a clear
withdrawal from those newly established principles. “Black codes”
returned the belief in subhumans and restored the idea of human chattel.
The Thirteenth Amendment prohibited slavery or involuntary servitude,
but it made no mention of racial equality. Collectively, the “Black
codes” were intended to reduce the status of African Americans to a
level just above slavery and to demolish thoughts of racial equality.
Furthermore, African Americans who attempted to exercise their
freedom, were met with violent opposition even though they were not
challenging White rights.
Simply asserting African American
independence insulted White ideas of supremacy and racial order and
resulted in violent reactions. White Southerners showed the same
brutality towards African Americans as had existed before the war.
Between April 30 and May 2, 1866, White Southerners in Memphis
massacred 46 African Americans, burning four churches, 12 school
buildings and 90 homes. The value of African American property
destroyed was $110,000. An investigative committee report described
the riot as “the commission of crimes and perpetration of horrors, which
can scarcely find parallel in the history of civilized or barbarous
nations.”37
The spark for this racial conflagration was a conflict between
discharged African American soldiers of the Third heavy battalion and
Irish police officers. This confrontation was used as an excuse for the
wholesale murder of African Americans. On July 30, a riot broke out in
New Orleans in which 34 African Americans were slain.38 The
precipitating issue was African Americans voting in the local elections.39
In both cases local officials actively participated in the rioting and were
responsible for much of the violence. Historian John Hope Franklin
wrote, “[t]o most Northerners the riot was another step back towards
slavery . . . .”40
The South had already relegated African Americans to a semi-slave
status and now they were stripping them of their only means of
protection. African Americans were banned from political participation,
37.
(1941).
38.
39.
40.
ALRUTHEUS A. TAYLOR, THE NEGRO IN TENNESSEE: RECONSTRUCTION 1865-1880 86
FRANKLIN, supra note 34, at 63.
Id.
Id. at 64.
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which meant they could not voice their opposition to the developing
situation. A pattern of servitude and subjugation, established by the
former slaveowners, restricted their social conduct. They were subject
to a form of peonage, not unlike slavery, by severe vagrancy and labor
laws. Lastly, they were subjected to a harsh criminal code designed to
maintain strict racial control and second-class status. In essence, all of
the gains of the Civil War were reversed by Southern policy. This
reversal had taken place with the support and sanction of President
Andrew Johnson. The Civil War had ended less than nine months
earlier, and Southern leaders were already demonstrating their inability
to accept their changed status.41
The passage of the Thirteenth Amendment demonstrated the
dramatic change four years of war produced. On February 27, 1861, a
Constitutional amendment was introduced that would have permanently
protected slavery where it existed. The Amendment, introduced by
Ohio’s Republican Congressman Thomas Corwin, stated “No
amendment shall be made to the Constitution which will authorize or
give to Congress the power to abolish or interfere within any State, with
the domestic institutions thereof, including that of persons held in labor
or service by the laws of said State.”42 This amendment had the support
of President Abraham Lincoln and was ratified by three states: Ohio,
Maryland, and Illinois. If ratified, this 13th Amendment would have
guaranteed slavery and ensured that African Americans remained a
permanent slave class in America. Less than five years later, Americans
ratified a radically different amendment, which forever ended slavery
and abolished the notion of people as property.43
Under America’s system of slavery, African Americans were
defined as chattel or property, with no rights that Whites had to respect.
As property, they could be bought and sold, a status that was similar to
animals. By defining African Americans as animals, America had
essentially divorced those of African descent from the human family,
classifying them as social pariahs. This status was sanctioned by law
and reaffirmed by the words of Supreme Court Chief Justice Roger
Taney, who wrote the majority opinion in the controversial Dred Scott
decision.
The Dred Scott case was possibly one of the most important
Supreme Court decisions regarding race before 1860. Dred Scott was
41. DAVID KYVIG, EXPLICIT & AUTHENTIC ACTS: AMENDING THE U.S. CONSITUTION 17761995 164 (1995).
42. KYVIG, supra note 41, at 151.
43. KYVIG, supra note 41, at 151.
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born into slavery in Virginia around 1800. Between 1818 and 1830,
Scott’s owner moved him from Virginia to Alabama and finally to St.
Louis. Between 1833 and 1836, Scott served as a slave to an Army
doctor named John Emerson at Fort Armstrong in Illinois. During that
period he lived on the Army base. Under Illinois’ State Constitution
Scott could have sued for his freedom, because slavery was illegal in
Illinois.44
After the Army evacuated Fort Armstrong in 1836, Scott’s owner
moved him to Fort Snelling in Minnesota. According to the Missouri
Compromise, slaves could never be brought into that area. Just two
weeks before leaving Minnesota, Congress passed the Wisconsin
Enabling Act, which reaffirmed that slavery could not exist in
Wisconsin, Minnesota, or Iowa. Scott lived in Minnesota from 1836
through 1838, during which time he met and married Harriet Robinson,
a slave owned by an Indian agent stationed near Fort Snelling.45
In 1837, Dr. Emerson moved to Louisiana where he met and
married Eliza Irene Sanford. They were married in 1838, and moved
Dred and Harriet Scott to Louisiana. In 1840, the Scotts had a child
name Eliza, who was born on a boat on the Mississippi River between
Illinois and Wisconsin. From 1840-1846, the Scotts lived in St. Louis.
In 1846, Scott attempted to purchase his and his family’s freedom. Irene
Emerson refused to sell. Scott sued claiming that he was free because he
had lived in free territory.46
After numerous delays, the case finally went to court. Both lower
courts sided with Scott. They followed the precedent established in
1772, which said that periods in free territory granted freedom to slaves.
The law relied on by the lower courts said that because slavery was an
artificial condition, the law required positive law was required to reverse
the natural order of men. In 1852, the Missouri Supreme Court, in a
clearly bigoted decision, declared Scott a slave. John A. Sanford,
Irene’s brother, represented her interest in regard to the case. In 1854,
Scott’s lawyers appealed the Missouri decision to federal court.47
The case went before the United States Supreme Court, where
Chief Justice Roger Taney reigned. Taney was clearly influenced by the
developing political conflict between the North and South. He wanted
to use this case to settle several issues that divided the nation. His
decision was based upon established constitutional realities. According
44.
45.
46.
47.
See generally, VINCENT C. HOPKINGS, DRED SCOTT’S CASE 1-4, 35-37 (1967).
Id. at 1-7, 37, 49, 56.
Id. at 1-7, 10-13.
Id. at 23-27.
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to Taney,
The African race in the United States even when free, are everywhere a
degraded class, and exercise no political influence. The privileges they
are allowed to enjoy, are accorded to them as a matter of kindness and
benevolence rather than rights . . . They are not looked upon as citizens
by the contracting parties who formed the Constitution. They were
evidently not supposed to be included by the term citizen.48
According to Taney, Africans were never supposed to be citizens of
the United States. They were brought to this country to serve as a
laboring class who were not included in the group with the natural rights
to life, liberty, and the pursuit of happiness. A cursory investigation of
1850’s thought reveals that this was not a radical position, but in fact,
the opinion of many Americans. States conferred citizenship, but that
conferral was always subject to federal review. An African American,
whether free or slave, was still considered part of that degraded group
who were ineligible for full citizenship rights. States which awarded
citizenship rights to African Americans were imposing an artificial
status of equality which did not fit the established order. As Taney
wrote, “Blacks were so inferior that they had no rights which White man
was bound to respect.”49 He went on to say African Americans could
never be citizens of the United States, even if they were born in the
country and considered to be citizens of the states in which they lived.50
African Americans were considered property, not people.
Therefore, no African American could ever attain equality with Whites,
because no African American could ever be seen as equal to a White
man. This notion was solidified with Justice Taney’s opinion and
became a flashpoint for Northern and Southern leaders. Clearly, there
were those who disagreed with this perception of African Americans and
who fought hard and long to change the nation’s opinion. Nevertheless,
the law had defined African Americans as noncitizens and codified their
inequality.51
The most significant issue for those who reshaped the nation after
the Civil War was: how do you take property and turn it into humans?
The second issue was: how free should African Americans be? The
third issue was: who were American citizens and what does American
48.
(1997).
49.
50.
51.
PAUL FINKELMAN, DRED SCOTT V. SANFORD: A BRIEF HISTORY WITH DOCUMENTS 30
Id. at 36.
Id. at 35-36.
HOPKINS, supra note 44, at 104-07.
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citizenship mean?
The first step to answering those questions was to reverse the
disastrous Dred Scott opinion. In March 1866, the United States
Congress began defining what freedom meant to African Americans.
Congress’ answer to questions about citizenship was the 1866 Civil
Rights Act. The 1866 Civil Rights Act provided the first federal
statutory definition of citizenship. It also gave the federal government
the authority to intervene into state affairs when necessary to protect
federal citizenship rights. The 1866 Civil Rights Act made citizens of
everyone born in the United States who was not subject to a foreign
power. This citizenship and freedom was to be protected by the federal
government.52 “The power that gave freedom must see that this freedom
is maintained.”53
The 1866 Civil Rights Act excluded nontaxed Native Americans,
but gave citizens, regardless of color, the authority to sue in court, give
evidence in trials, “inherit, hold, and convey property,” and “be entitled
‘to full and equal benefit of all laws and proceedings for the security of
person and property, as is enjoyed by white citizens.’”54 Those who
deprived citizens of their rights were subject to fines and
imprisonment.55 They would also be tried in federal courts.56 Since
there was no federal police force, the measure also allowed for the use of
federal troops, the Army and Navy, to enforce this measure.57 Those
who were aggrieved could appeal all the way to the United States
Supreme Court.58 The bill passed with unanimous Republican support
in the House of Representatives, and only three Republican senators
voted against it.59
Clearly, the majority of those in leadership wanted to give African
Americans full equal citizenship rights. This law established African
American and White equality under the law. The intention of those who
supported this law was to end the argument about where African
Americans fit into the newly formed nation. There was strong
opposition to establishing one definition of citizen and providing for
federal protection of citizenship rights during this period. The law also
52.
53.
54.
55.
56.
57.
58.
59.
DUBOIS, supra note 21, at 270-72.
Id. at 272.
RANDALL & DONALD, supra note 5, at 579.
Id.
Id.
Id.
Id.
Id.
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gave state citizenship to state residents.60
The 1866 Civil Rights Act highlighted the developing split between
the President and Congress over who should define citizenship, and
which level of government should protect those rights. President
Andrew Johnson, a former Tennessee Senator, had all of the
characteristic prejudices of White Southerners. He did not accept
African American equality or citizenship, and he was uncomfortable
giving citizenship rights to the newly freed slaves, because he did not
believe that they were ready for it.
Johnson was especially
uncomfortable with increasing governmental authority to protect African
American rights at the expense of state’s rights.61
President Johnson responded to this increased activism by using
racial and nationalistic rhetoric to denounce Congress while vetoing the
measure. To him, African Americans did not possess the requisite
qualifications to entitle them to all the privileges and immunities of
citizens of the United States. Johnson couched his veto in the two
arguments people continue to use to deny African Americans equal
rights. First, he talked about state’s rights. Next, he showed his hand
and admitted that he did not accept African American equality.62
After the initial opposition from the President to the 1866 Civil
Rights Act, several of the Republican Congressmen decided to write a
more permanent defense of African American rights into law. Their
answer was the Fourteenth Amendment. The Fourteenth Amendment
incorporated all of the legal and moral guarantees of the 1866 Civil
Rights Act and made them part of the United States Constitution.63
It is obvious to anyone familiar with the debates about the
Fourteenth Amendment that there was no uniformity of thought on
African American citizenship. Many people challenged the change in
African American status. Much of the debate on the Fourteenth
Amendment revolved around the expansion of federal authority. The
key issue surrounding the Fourteenth Amendment was: does the United
States want to radically change the relationship between the state and
federal government? Richard Kluger says: “Without doubt it was
changing the previous division of powers between the state and federal
governments. Without doubt it promoted the United States as an
interloper between every state and its inhabitants.”64
60.
61.
62.
63.
64.
See generally, id. at 579-82.
Id.
See generally, id. at 578-79.
FONER, supra note 1, at 251-53.
KLUGER, supra note 23, at 47.
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What were the imperatives which pushed Reconstruction leaders to
include African Americans in their national definition of citizenship?
One of the first imperatives was African Americans’ participation in the
Civil War and their contribution to saving the Union. Even though
Southern leaders shared a racial bond with most Northerners, their
ideological differences were immense. African Americans sacrificed
life and limb in defense of the Union. More than 38,000 of the 186,000
African Americans who served during the Civil War perished. White
Southerners used everything at their disposal in a failed attempt to
destroy the Union. Reconstruction leaders believed that it was only fair
to allow those who helped preserve the nation enjoy the privileges of
citizenship in the nation their sacrifices helped preserve. They also
believed that they should strip those who had tried to destroy the union
of their rights.65
Congress was under the control of the Republicans, who wanted to
ensure that they guarded against any further constitutional disruptions.
Therefore, they made it a condition of readmittance that states ratify the
Fourteenth Amendment before they could be restored. The Fourteenth
Amendment was a marvel of social reconstruction. It disqualified rebel
leaders, established African American voting, created new constitutions
based on racial equality, led to the election of multicultural state
legislatures, and dramatically changed the relationship between the state
and federal government. It also established the notion of equality under
the law. There was no longer a Black and White. There was just an
American.66
In essence, what the Fourteenth Amendment did was turn African
Americans into White men, so that they could enjoy the rights,
privileges, and immunities associated with citizenship. If the law looked
at African Americans and saw Black people, African Americans could
never hope to get justice from the legal system. In order to have the
laws embrace African Americans, the courts had to view them as White
men. America’s standard for justice and equality is based upon the
notion that all White men were created equal. To extend this equality to
African Americans, they have to be seen in the eyes of the law as White
men. As historian David Kyvig writes, “[t]he Fourteenth Amendment
offers perhaps the best demonstration of the fundamental changes in
American constitutionalism wrought by the Civil War; the Fourteenth
65. JACK D. FONER, BLACKS AND THE MILITARY IN AMERICAN HISTORY: A NEW
PERSPECTIVE 45-48 (1974).
66. See generally, DUBOIS, supra note 21, at 306-22.
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Amendment would provide the legal basis for a federally directed end to
racial segregation.”67
Ironically, what the Fourteenth Amendment did was destroy the
Negro and leave only the White man in America. Equality, freedom,
and social justice were extended to other groups only as they were
viewed as White men. Therefore, justice in the United States became
associated with a person’s or a group’s ability to be identified with
White men in the courts’ eyes. The problem with this was that laws
could not change attitudes. The essential notion of the Dred Scott case
held sway only to the degree that White men accepted the notion of
African American equality. White men dominated the American judicial
system. The judges, juries, and prosecutors were generally White men.
The Fourteenth Amendment put the onus of accepting African American
equality on them and forced them to view African Americans as equals
or face legal and judicial sanctions.
The majority of the Supreme Court Justices who decided the Plessy
decision recognized the significance of the Fourteenth Amendment, but
could not bring themselves to accept African American equality.68 As a
result, they shrouded their White supremacist feelings in arguments
about differences. The Court when it dispensed justice continued to see
African Americans and not White men. As Justice Henry Brown wrote,
“[t]he object of the amendment was undoubtedly to enforce the absolute
equality of the two races before the law,”69 and “[i]f one race be inferior
to the other socially, the Constitution of the United States cannot put
them upon the same plane.”70 In his dissent from the majority, Justice
John Marshall Harlan saw through the subterfuge and wrote,
In my opinion, the judgment this day rendered will, in time, prove to
be quite as pernicious as the decision made by this tribunal in the Dred
Scott case . . . [I]t seems that we have yet, . . . a dominant race—a
superior class of citizens, which assumes to regulate the enjoyment of
civil rights, common to all citizens, upon the basis of race.71
Harlan went on to explain how the Plessy decision violated the
notion of leveling up when he wrote,
What can more certainly arouse race hate, what more certainly create
and perpetuate a feeling of distrust between these races, than state
67.
68.
69.
70.
71.
KYVIG, supra note 41, at 175.
Plessy v. Ferguson, 163 U.S. 537 (1896).
Id. at 544.
Id. at 552.
Id. at 559-60.
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enactments, which, in fact, proceed on the ground that the colored
citizens are so inferior and degraded that they cannot be allowed to sit
in public coaches occupied by whites citizens?72 [I]n the view of the
Constitution, in the eyes of the law, there is in this country no superior,
dominant, ruling class of citizens. There is no caste here. Our
Constitution is color-blind, and neither knows, nor tolerates classes
among citizens. In respect of civil rights, all citizens are equal before
the law.73
Harlan realized that the drafters of the Fourteenth Amendment
deliberately rejected the flawed interpretations used by Justice Brown
and the majority of the court in the Plessy decision. As John Bingham,
one of the authors of the Fourteenth Amendment wrote, “the spirit, the
intent, the purpose of our Constitution is to secure equal and exact
justice to all men.”74 If Bingham and the other Republicans had wanted
to create a second-class status for African Americans, they would not
have written in the constitutional guarantees incorporated in the Act.
The Plessy Court was clearly not colorblind. The Justices saw African
Americans as inferior beings and in their ruling they incorporated their
prejudices. Justice Brown and the majority did not recognize African
American equality. Instead, they reverted to a pre-war interpretation,
based on the Dred Scott decision, which held that African Americans
were somehow divorced from the rest of society and could never be
viewed as equal to Whites in America.75
If their view was correct, then there was no such thing as equal
protection or equal justice in the United States. If that was the Court’s
opinion, then the Fourteenth Amendment was a dead letter with no more
authority than the Papal Bull against the Comet. This duality of thought
produced the unfortunate period of Jim Crow segregation with all of its
corresponding effects. In fact, the whole notion of segregation was
because the United States courts did not recognize African American
equality. Legal separation is by definition discriminatory. The mere act
of separating people recognizes the difference and proves that the courts
were not colorblind. Even if the accommodations had been legally
equal, segregation would have been discriminatory and a violation of the
spirit of the Fourteenth Amendment and the idea of leveling up.
On May 5, 1954, the United States Supreme Court finally
recognized its mistake and carried out the true intent of the Fourteenth
72.
73.
74.
75.
Id. at 560.
Id. at 559.
KYVIG, supra note 41, at 165-66.
KYVIG, supra note 41, at 165-66.
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Amendment.
Chief Justice Earl Warren understood that the
Amendment’s original intent was to create equality. He knew that the
real meaning of a color-blind society is that law and society do not
recognize that people are not White. No matter what color or gender
stands before the bar of justice, the courts must see White men when
dispensing justice. Before 1954, people were not singled out for
disparate treatment because they were White, but instead because they
were not. What a color blind society means, as it relates to the United
States, is that people see others as Whites, not that they do ‘not see
color. Judge Warren understood that there was no legal or moral
imperative in separating African Americans from others except the
maintenance of White supremacy.76
The irony of this position is that fixing it requires the Court to
recognize color and create race and gender specific solutions that correct
the particular problems created by the Court’s original flawed positions.
Those who study Reconstruction should understand what the Republican
leaders were trying to do. They wanted to solve America’s most
intractable problem: race. Unfortunately, intellectuals have allowed
those who oppose creating a truly egalitarian society to capture the
intellectual high ground. Until people like Charles Sumner, Thaddeus
Stevens, and John Bingham are as respected as Robert E. Lee, Nathan
Bedford Forrest, and Andrew Johnson, we will never appreciate the
significance of the Fourteenth Amendment.
76. Brown v. Bd. of Educ., 349 U.S. 294 (1955).